On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098-005-438.
The opinion of the court was delivered by: Pregerson, Circuit Judge
Argued and Submitted February 1, 2010-Pasadena, California.
Before: Betty B. Fletcher, Harry Pregerson, and Susan P. Graber, Circuit Judges.
Opinion by Judge Pregerson; Concurrence by Judge Graber
Marc Antoine Joseph petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming an immigration judge's ("IJ") denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. The IJ found that Joseph was not credible. The main issue here is whether an IJ, who presides over the same petitioner's bond hearing and removal hearing, may use her notes from the unrecorded bond hearing in reaching her decision in the removal hearing. We conclude that she may not. Because the other bases of the IJ's and BIA's adverse credibility finding were also erroneous, we grant the petition for review and remand to the BIA for it to determine whether, accepting Joseph's testimony as true, he is eligible for relief.
I. FACTS AND PROCEDURAL HISTORY
A. Joseph's Testimony at his Removal Hearing
We summarize the testimony Joseph gave at his removal hearing on January 25, 2005. Joseph, a 29-year-old Haitian musician, started his own band in his hometown of Petite Riviere de l'Artibonite ("Artibonite"). In 2000, President Aristide visited Artibonite. After hearing Joseph sing, Aristide asked Joseph to create a musical group to support the Aristide movement in the Artibonite region. Joseph wrote music for the group,*fn1 played the cornet, and was the spokesman and contact person for the group.
After this initial encounter with Aristide, Joseph became involved with Aristide's political party, "Lavalas." Joseph organized meetings and protests for Lavalas in the Artibonite region and attended around 20 to 25 Lavalas meetings himself. Joseph testified that he supported Aristide "simply" because he thought that "Aristide would have changed the economy of the country, and he had changed the poverty of the people" and because he believed that "Aristide was the one to change that. . . . He tried to change the economy of Haiti to put Haiti at a higher standard."
On April 22, 2004, Joseph held a Lavalas meeting at his house. Joseph testified that a man named "Dario," who was a member and director of "Ramikos," a group opposing Lav-alas, came to Joseph's house to disrupt the meeting. Dario pressured Joseph to join Ramikos and threatened to kill Joseph if he refused to join. When Joseph asked Dario to leave, Dario threw stones at Joseph, hitting him on the head. Dario then punched Joseph in the face. Joseph believes that if the other people present at the Lavalas meeting had not separated them, Dario would have killed Joseph because Dario was "known as a very dangerous man." Later that night, between midnight and one in the morning, Dario returned, broke down the front gate of Joseph's house, and started shooting. Joseph believed that Dario had returned to kill him. Joseph's mother told Joseph to leave the house and "go very far away."
Joseph fled from Artibonite to Lincour, where his friend Vladimir lived. Vladimir later returned to Joseph's house and found that Ramikos members had severely beaten Joseph's mother and raped Joseph's sister. On June 1, 2004, Vladimir and his friends were playing dominoes in front of the house when they saw Dario and around 20 other Ramikos members approaching. Joseph, believing that Dario had come to kill him, fled from Lincour to Port-au-Prince. When Joseph arrived in Port-au-Prince he stayed with Vladimir's friend, Herold, for 23 days before leaving Haiti.*fn2
After Joseph left Haiti, on July 29, 2004, Joseph's cousin, Dumarsais Riker, visited Joseph's mother in Artibonite. Joseph and his cousin were similar in appearance and wore the same clothes. Joseph believes that Ramikos shot and killed Dumarsais, burned Dumarsais's car, and destroyed Joseph's mother's house because they mistook Dumarsais for Joseph. Joseph submitted into evidence photographs of Dumarsais's body, his car, and the destroyed house.
According to Joseph, his mother and sister moved to avoid further harassment by Ramikos. Joseph's girlfriend ended their relationship because of harassment from Dario and Ramikos.
Joseph left Haiti because "members of the group of Ramikos and Dario were looking for [him] to kill" him. Joseph explained that Ramikos had become even more powerful and is now associated with a group named "184." Joseph testified that Ramikos and 184 can do whatever they want in Haiti and would kill Joseph if he returned. Joseph believes that the groups opposed to Lavalas, including 184, would "know [his] name and would eventually kill [him]" anywhere in Haiti.
Joseph entered the U.S. from Mexico, without documents, on or around July 2, 2004. On July 4, 2004, U.S. Border Patrol Officers apprehended Joseph and issued a Notice to Appear charging Joseph with entering the U.S. without inspection. On August 5, 2004, Joseph appeared without counsel at his master calendar hearing before an IJ. Joseph was also unrepresented at his August 27, 2004, bond hearing in front of the same IJ who denied his application for bond. No transcript of the bond hearing exists.
B. The IJ Considered Her Bond Hearing Notes During Joseph's Removal Hearing
According to the IJ's bond hearing notes and contrary to the testimony Joseph gave during his removal hearing, Joseph "testified that he left Haiti because a group of President Aristide's wants to kill him." The bond hearing notes indicate that Joseph also testified that he was a member of a band that played every Easter. According to the IJ's bond hearing notes, Joseph testified that Dario was a member of a pro-Aristide group, rather than an anti-Aristide group as Joseph later testified during his removal hearing. Further, the IJ's bond hearing notes reflect that Dario argued with Joseph and threw rocks at him because Dario wanted to break up Joseph's band, not because, as Joseph later testified at his removal hearing, Dario wanted Joseph to join Ramikos, the anti-Aristide group.
On January 25, 2005, the same IJ presided over Joseph's removal hearing. At this hearing the IJ sought to supplement the record with her notes from Joseph's bond hearing. Joseph's counsel challenged the propriety of including the bond hearing notes in the record of Joseph's removal hearing because there was no transcript of the bond hearing. Nonetheless, the IJ's bond hearing notes were typed into a bond memorandum and included in the record of Joseph's removal hearing.
C. The IJ and BIA Decisions
On January 25, 2005, the IJ denied Joseph's claim for asylum, withholding of removal, and relief under CAT because she had "very real concerns regarding the credibility of [Joseph's] claim." The IJ found that Joseph submitted a detailed declaration and detailed testimony at his removal hearing. Because of that detail, the IJ stated that she "would have expected . . . a more thorough explanation, during the bond hearing, with respect to [Joseph's] fear, his past persecution." Specifically, the IJ "would have expected to have been told of persecution and assaults on [Joseph's] family" when she asked Joseph at his bond hearing why he had left Haiti.
The BIA affirmed the IJ's decision and specifically stated that it found that the record supported the IJ's adverse credibility finding. The BIA found "no error on the part of the [IJ] in noting the inconsistencies between the claim presented by [Joseph] during his bond hearing and that presented subsequently during his merits hearing." The ...